What Do I Need to Know About Surrogacy Laws?

Surrogacy Laws

While surrogacy has opened the possibility of parenthood to so many who may not otherwise be able to carry a child on their own, surrogacy laws can be pretty darn confusing. But don’t worry, we’ve got your back. Before committing to surrogacy, let’s untangle the various complex legal questions that this form of assisted reproduction raises.

Here’s an overview of surrogacy laws to hopefully make this process a little less complicated.

First things first: lawyer up

To make surrogacy laws less straightforward, in the United States, there are actually no national policies or laws governing surrogacy, and state laws vary widely state by state. While some states are more surrogacy-friendly, other state surrogacy laws actually make it a crime to pay for a surrogate. Mind blown, right?

Some states may not even have laws directly addressing surrogacy at all. What’s more, there are a few different ways to define surrogacy—traditional (using the surrogate’s eggs) and gestational (with no biological link between the surrogate and baby). Different states treat these forms of surrogacy differently.

Basically, surrogacy brings up a ton of stuff to figure out. Hiring a surrogacy attorney for the process is important to protect the rights of both intended parents and prospective surrogates. Being informed about any restrictions or unique laws will allow for a much smoother process, and enable you to feel calm, cool and collected as you gear up for parenthood.

Protect those rights

One critical reason to hire a lawyer to dig into those surrogacy laws is to protect the parties’ rights. Each state will likely have different requirements to establish those rights, and an attorney will know what those steps are in your unique situation.

For example, in some states, even though a gestational surrogate is not genetically related to the baby, she may have rights to the child, or the intended parents may not have automatic rights to the child, (particularly if a sperm, egg or embryo donor is used). Wild, but true. An attorney knowledgeable in your state’s surrogacy laws and requirements will ensure that you avoid any custody disputes over a child born via surrogate.

Surrogacy agreements

Intended parents and gestational carriers also usually put together a “surrogacy agreement.” While surrogacy contracts aren’t always enforceable, in states where they are, it’s smart to retain a good attorney to help draft the contract between the parties. Many fertility clinics may even require a surrogacy agreement before moving forward with actual medical procedures. It’s just good to iron out logistics ahead of time. Makes sense, right?

The surrogacy agreement will answer many of the complicated legal questions that may arise during pregnancy and may also prevent disputes by laying out various “ifs and thens” beforehand. Some topics to cover might include: the method of pregnancy, sensitive issues like termination and selective reduction, requirements and restrictions during the pregnancy, birth arrangements, custody, and financial compensation.

Some state-specific surrogacy laws to consider

Now that you’ve gotten the download on why it’s important to consider surrogacy laws, let’s dive into some state-specific laws, shall we? Here’s a quick overview of what surrogacy looks like in a few states that have more complex surrogacy laws, for better or for worse.

California surrogacy laws: as friendly as they come

California Code, Family Code section 7960 governs California surrogacy laws. Unsurprisingly, California has a great reputation for being super surrogacy-friendly. Unlike some other states, California surrogacy laws allow intended parents to establish legal parentage rights before birth without requiring separate adoption proceedings. And good news for the LGBTQ+ community in California: you’re included in all of this, too, married or not (yay!). Unfortunately, that’s not the case in all states, so it’s worth calling out here.

But don’t get too excited yet. Surrogacy in California isn’t 100% simple, and California law does maintain certain requirements. For example, California surrogacy laws require that intended parents and carriers are represented by separate legal counsel and the parties will need to create a California surrogacy legal contract before beginning any medical intervention.

New York surrogacy laws: it’s gotta be altruistic

Although gestational surrogacy is technically legal in New York, the state’s surrogacy laws don’t allow a surrogate to receive compensation for her efforts, which makes things…tricky. As a result, surrogacy in New York oftentimes takes the form of “compassionate” or “altruistic” surrogates, who agree to carry a child for others out of love or compassion (versus payment).

New York has been making recent efforts to change its policy. Governor Andrew Cuomo has publicly declared his support for a bill called the Child-Parent Security Act (CPSA), which seeks to legalize commercial (paid) gestational surrogacy.

The CPSA would also set forth legal parentage for donor-conceived children and regulate the disposition of frozen embryos. For example, the CPSA proposes to close the state’s loophole allowing sperm donors who donated to a single parent to seek legal rights to a child (yup, that currently exists). As of the summer of 2019, however, the House refused to vote on the measure despite it passing the State Senate. The Bill is highly contested, but New York attorneys and policymakers are hoping that their efforts will be successful in 2020.

Also, unlike California, surrogacy agreements are not enforceable in New York. This means that such an agreement will not be enforced in court and will depend on the integrity of the parties involved. Unfortunately, in New York, surrogacy laws are still a bit of a grey area.

Finally, New York surrogacy laws do not allow for a “pre-birth” declaration of parenthood. So again, unlike California, if intended parents are not the genetic parents of the child (for example, with a donated embryo), they will be required to engage in formal adoption procedures because the birthing person is technically presumed to be the legal parent of the child. However, where the intended parents are also the genetic parents, and the surrogate does not object, intended parents may be able to obtain parentage orders shortly after birth without adoption proceedings.

Texas surrogacy laws: careful with those dollars

Section 160 of the Texas Family Code governs gestational surrogacy. Making sure to abide by the code section, intended parents and gestational carriers may enter into a written agreement governing surrogacy.

When it comes to Texas surrogacy laws, the funkiest part is definitely the payment piece. Navigating the surrogate’s compensation in Texas is complex, and it’s important to understand what’s legal and what isn’t.

  • Legal: In Texas, a gestational surrogate may receive base compensation to cover her time, the physical risks surrogacy poses, and any lost wages.
  • Not legal: Paying a woman in exchange for birthing a baby—the compensation must strictly be in exchange for time and effort.

Also, in Texas, current surrogacy laws only apply to married couples (same-sex as well as opposite sex). However, courts do sometimes issue parentage orders to unmarried couples pursuing surrogacy in Texas.

You got this

The roadmap to surrogacy definitely varies widely depending on the state’s laws. Importantly, the surrogate’s state of residence—not yours—is likely where the majority of the legal process will take place, and her state will impact the journey the most. Interstate surrogacy is an option, particularly if your state is not surrogacy-friendly.

Surrogacy agencies and attorneys will help detangle this complicated web, protect your rights, and hopefully make things much less overwhelming. In the meantime, we’re here for you along the way.

If you’ve got any state-specific surrogacy tips, throw them in the comments!

Disclaimer: This document is provided for information purposes only and is not intended as legal advice. If you need legal advice regarding your specific situation, we strongly recommend that you consult a competent, licensed family law attorney who is familiar with these issues. It is also important that you understand that the information provided here in no way constitute, and should not be relied upon, as legal advice.

Nathalie Fayad

Nathalie Fayad is a civil litigation attorney practicing in the San Francisco Bay Area. She represents clients in breach of contract, trade secret, and employment disputes across different industries. Outside of the office, Nathalie is passionate about the fertility space inspired by her own personal journey. She also enjoys spending time with family, catching up on movies, and exploring San Francisco.

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